16 March 2015

Jockophobia

The Scottish people may have a right to self determination, but as a matter of international law, we have no right to secede from the United Kingdom. A couple of weeks back, I delivered a lecture to our honours students on the concept of territorial integrity in international law, and that, in a nutshell, was the inconvenient, take away message from the class.

Unless a "people" is forcibly redeeming itself from colonialism, the oppressive domination by an alien people, and denied equal access to government, international law remains leery about recognising the right of sub-state communities unilaterally to blast apart the borders of recognised states, like the alien wean popping out of John Hurt's belly. As the Supreme Court of Canada said, in the Quebec reference of 1998, in international law:

"... the right to self-determination of a people is normally fulfilled
through internal self-determination - a people's pursuit of its
political, economic, social and cultural development within the
framework of an existing state. A right to external self-determination
(which in this case potentially takes the form of the assertion of a
right to unilateral secession) arises in only the most extreme of cases
and, even then, under carefully defined circumstances."

Would-be Napoleons know that international law will not now permit territory to be acquired by force. But as the Russians have demonstrated in Ukraine, and the effective annexation of the Crimea, the discourse of self determination, married to dirty tricks, can allow looming territorial neighbours to abuse salami-slicing tactics to de facto acquire territory which could not be won de jure with a tank or at the barrel of a gun.

That is one of the reasons that the General Assembly of the United Nations has recently adopted this resolution, reaffirming the principle of territorial integrity and that the Crimea remains, as a matter of international law, part of the Ukraine. The breakaway territories of Georgia, South Ossetia and Abkhazia, raise similar anxieties, both in terms of the Russian influence, but also in terms of the basic principle that international harmony is best promoted by upholding the integrity of states within their recognised borders.

Kosovo, and the judgment of the International Court of Justice on the legality of its declaration of independence from Serbia, may have undermined traditional conceptions about the preconditions for unilateral secession, but even taking these into account, Scotland enjoys no right to secede. If you cast your mind back to the Crawford and Boyle UK government paper of 2012, on international law aspects of the referendum, they talked about "negotiated independence" as opposed to secession.

But if the UK government had decided
to cut up rough, to block the referendum, or ignore its outcome, they
would be behaving entirely within their rights under international law
as it is understood today. Replace the word "Quebec" with Scotland and the word "Canada" with the United Kingdom in this section of the Canadian Supreme Court Quebec secession reference, and you get the idea.

136. The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada. Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world. The population of Quebec is equitably represented in legislative, executive and judicial institutions. In short, to reflect the phraseology of the international documents that address the right to self-determination of peoples, Canada is a "sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction".

The students looked a bill shell-shocked at these tidings, certain that they would find in international law some recognition for the basic democratic rights that they had all exercised last September. But you won't find any such recognition. Self determination, at last legally, does not mean what most of the punters think it means. But after class, I find myself lingering most over this idea of "internal self determination" in the context of the rampant Jockophobia presently gripping elements of the Conservative Party and their friends and allies in the tabloid and broadsheet media.

You could be forgiven for thinking that the Tories were not running candidates north of the Tweed, so outraged are they by the prospect of David Mundell setting the political agenda for the Plain People of England, and subjecting the Nats to "no platform" style rhetoric, in the hopes of appealing to the English folk who blether to Matthew Parris, who formerly did not "harbour any feelings, positive or otherwise, towards Scotland", but who are now feeling got at, cantankerous and queerly victimised.

In the hopes of pleasing these people, and of undermining the chances of a minority Labour government being formed, we are seeing a vigorous attempt to tar and feather the SNP as unconscionable, crackerjack, wabbit-eyed separatists, and illegitimate actors in British politics. "We refuse to negotiate with any political party, unless and until it renounces its separatist agenda and lays down its commitment to asking irritating questions about how Britain is governed." But take heart. International law tells us, we must press for internal self-determination. Inconvenient, it may be. Awkward, no doubt. But England must expect the Nationalists to strive to dismantle and to rebuild the foundations of the British state from within.

Although the Nats are the explicit target
of these Tory diatribes, their real objective is to pre-emptively
de-legitimise the idea of a minority Labour government taking office
with Nationalist votes, even if such a government would command
stronger support in the Commons than a Tory minority. The real victims
in all of these antics are not the SNP - but the pigeon-hearted Labour
Party, who predictably enough, seem content to go along with their own
annihilation at the hands of Fleet Street and Conservative Central
Office.

The exaggerated polarities of Yes and No are a clumsy prism through which to see the ambivalent and warring sentiments and preferences at work in the 2014 referendum. They are even less apposite, less helpful, in trying to think through and act constructively in its aftermath. As international law reminds us, self-determination is not only about independence, and the creation of a separate state, but about how we are governed within the United Kingdom. As Shakespeare did not say, a real and meaningful union must be one "which alters when it alteration finds."

38 comments
:

Interesting, but then the question must be: is it even possible to attain internal self-determination when the larger forces at work seem determined to prevent it? When we don't even have control over our own broadcasting, it seems laughable to suggest that we, as part of the UK, have anything close to it.

It is an important question, and one for domestic politics to address, but international law as it stands has no sympathy with this proposition. We do not meet the criteria to enjoy a legal right to secede, or even, frankly come close.

So does international law say nothing pertaining to the nature of the state and the internal entity seeking self determination? Does our history as a nation, our retention of our own legal system, education system, health, police, prisons not count? Does the fact that we were joined as supposed equals by treaty not count?

If not then international law basically says that no treaties entered into by two countries can ever be rescinded unilaterally. Which would be a curious situation. After all we were not unified by conquest or by some external empire lumping different tribes together as we did say in Sudan or any number of places. If Maori in New Zealand can use the courts and oblige the legislature to give them back their rights enshrined in the Treaty of Waitangi then surely Scotland, in possession of a parliament (which entity was one party to the treaty of union) not entreat and elect to that parliament a majority party or parties pledged to repeal that Treaty? (issues of competency not arising).

At the very least our parliament could surely make open representations to our treaty partner (one could be cobbled together in London) c.c. the EU as honest broker and witness (the UN could do as well) and we see what response we get then use obfuscation and refusal as pretext. All above board and using legal instruments and a surviving and binding international Treaty. Because after all if the Treaty of Union is not still in force what bind us?

No. I am afraid that, from a legal point of view, Peter Thomson is once against talking bollocks with confidence. He misreads and misconstrues the basis of the UK Supreme Court decision in AXA, misreading and misconstruing the legal reasoning in MacCormick while he is at it. It is an auld sang of his, but as ever, guff. He is not to be convinced otherwise, but if one of my students submitted this kind of legal analysis, they would fail.

Andrew: 'The exaggerated polarities of Yes and No are a clumsy prism through which to see the ambivalent and warring sentiments and preferences at work in the 2014 referendum.'

Indeed, my sister and her Rangers supporting pals are mostly diehard indy yet are also not exactly what one would call screaming pinko liberals, thus breaking at least two big assumptions in one go.

Andrew: 'As Shakespeare did not say, a real and meaningful union must be one "which alters when it alteration finds.”

A recent TLS piece pointed out Shakespeare worried away (as one does) in particular at the issue of linked Welsh and English identity - the Tudor myth. Henry V says 'I am Welsh, you know” except he is not really, or if so in the sense that Princess Anne is Scottish.

Shakespeare of course also toyed with Scottish links in Macbeth. In Jacobean London if you were of a tolerant disposition or (as in Fawkes case) Catholic, you tended to see Jamie’s Scots as bigots and money grubbing hypocrites (a projection now made by Scottish nationalists on English Tories) - Puritans might take a different view of their incoming Calvinist buddies.

Isn’t the obvious difference that Quebec is not a country and Scotland is.

The UK to my knowledge is pretty much unique in that it is made up of 3 nations and arguably a region of another. As far as I see it, the UK is just an earlier and longer lasting version of where the EU is headed a political Union of nations where power has been handed over the Union, just the UK was more extreme.

Scotland is not an internal part of a state secdeing, but instead a nation reclaiming sovereignty from within a political Union. After all again from my understanding, Scotland did not end when the Act of Union was signed, parliamentary power merely moved to Westminster.

That was also my understanding. Is it the position that the nation of Scotland has never received recognition from whatever passed as "international law" in the days before it joined this dire political union, LPW?Quebec has been enshrined within the concept of the nation of Canada since it's foundation, and would therefore have to leave a country of which it has always been a part.Scotland is a sovereign nation, joined politically to other sovereign nations by treaty only.

If we are talking only about international law - then the concept of being a "country" is not a terrifically important one. American States were, for example, once sovereign entities, pulled together into a confederation, while Quebec was once New France, and had a chequered (colonial) history of its own before being pulled into the Canadian confederation.

In our context, the United Kingdom is the state, and accordingly, it is it which enjoys a right to its territorial integrity (subject to the right of external self determination, in some circumstances). In this respect, it is distinct from the European Union, which does not have the same status as a sovereign, co-equal state in international law. There is an argument that the Scottish example is sui generis, like Kosovo, and therefore ought to be distinguished from Quebec and East Crimea in terms of having a right to external self determination, without the abuse of human rights, or exclusion from government, recognised as preconditions in international law for other peoples to enjoy a right to secede. I am not suggesting that international law is the be all and end all here - or ought to be. As a matter of politics, I don't really give a damn about whether or not international law thinks we merit the right to self-determine externally. It cannot be conclusive of the question. We do not give it the last word. And as the 2014 poll shows, the UK government recognise that the rights and entitlements of international law should not be the last word.

It is important, however, that we understand and are clear-sighted about what international law does and does not allow for and protect.

I thought that in 1707 two sovereign nations signed a Treaty of Union. Is it then impossible for one of the parties to annul the Treaty? The Scottish Parliament then put itself into suspended animation but did not vanish as an entity. Besides, in various aspects, such as governing law, Scotland retained characteristics of the sovereign nation it was.

So is secession the correct word? Is this not rather the dissolution of a bond created by treaty (who knows, for good reason perhaps, of non respect by one party of its provisions...) to re-establish the status quo ante?

They did. But as Professors Crawford and Boyle noted in their briefing paper (and Crawford is now a judge at the International Court of Justice), as a matter of law, that treaty arguably "extinguished" both England and Scotland and created a single, new state. Although there is a poetic continuity between the two parliaments - pre-1707 and the 1998 Scotland Act parliament - they are categorically different in their legal bases. We retained a distinct legal system - but then, many states with confederal structures have different legal systems. We are not, in the sense of international law, sovereign, as we are not a state. We have to accept that not all of the facts of life will be in our favour all the time.

In context of the "rampant Jockophobia" and the challenges it presents to the current state of the Union. Might I suggest you read the following by one of the leading architects, Gordon Guthrie, of the SNP surge from 2004 to present: https://medium.com/@gordonguthrie/strange-times-and-constitutional-politics-2085123baa0a

The current little Englander squall in the Tory party fits the type of description ascribed to the Czechs - including their words and deeds - during the process of the 'velvet divorce'.

Many parallels to be drawn etc. with the real irony being that the very people most likely to break up Britain will be those screaming loudest about its protection - the Unionists.

A thought I entirely sympathise with in this context. I repeat, nobody is suggesting that the absence of a positive right in international law to secede in the teeth of UK objections answers the question, and we should put ourselves back in the box.

I would question whether you can genuinely make the suggested replacements when unelected lords stand in for fisheries ministers and there is the stated intention that none of our elected representatives will enter the Cabinet. These are only two examples of denied rights and representation within the constraints of the UK.

I am not the best educated nor smartest man I know.After reading the blogg I was wondering about this United Kingdom,is one kingdom and was formed before any political union.Now with the Scottish people claiming sovereignty the union in the political sense was not legal.Not legal because all the people were not agreed nor consulted,so I also thought that the Act of Union meant that no part of the United Kingdom could be taxed differently from the rest,Community Charge being a point,then as I believe I read somewhere that our legal system could not be tampered with point to the New(relativity) Supreme Court this taking away part of the Scottish legal system.Just bits that I wonder about,please feel free to amend the grammar etc.

There, we get into the "effectivity principle" - discussed in the Canadian judgment at paragraph 106. The right to do something is different from having the power to do so. If we had voted Yes on the 18th of September last year, independence would have followed. That does not mean that we have a right to secede - against the wishes of the United Kingdom - in international law.

"A distinction must be drawn between the right of a people to act, and their power to do so. They are not identical. A right is recognized in law: mere physical ability is not necessarily given status as a right. The fact that an individual or group can act in a certain way says nothing at all about the legal status or consequences of the act. A power may be exercised even in the absence of a right to do so, but if it is, then it is exercised without legal foundation."

But isn't there something rather wistful to that last line about power being exercise without legal foundation?

Supposing that Scotland returned an SNP MP for every seat in the May election, and that the party's new leader, Jim Sillars, decided that this gave Scotland the moral right to secede. Supposing, then, that the rUK took the newly independent Scotland to court. I'm not clear where this court would be, how long it would rule, or what sentences would be available to it (maybe Scotland would be made a ward of court), but the world would surely move on. What would matter would be thinking-on-their-feet recognition by the US, the EU, the IMF etc.

Surely we would all obey the new laws made by the Scottish state. Surely companies would continue to enter into contracts with the state and treat it as a reliable or permanent international presence. Realpolitik would surely lead and legality would surely scamper inelegantly after it?

Scotland entered into a union voluntarily by an international treaty. The right of secession is supported by other authorities. There is also a growing argument that Scotland's relationship with the UK is becoming a colonial one, and this will certainly be the case if EVEL restricts the right of Scottish MPs to have equal rights in the imperial parliament or if an SNP Scottish majority is unable to influence it and might as well not be there.

Also, though we are misgoverned rather than oppressed, it can certainly be argued that for many of our most vulnerable citizens UK attacks on welfare and wealth suppression do form a very real form of colonial oppression whilst at the same time the imperial power extracts our oil wealth, whether in the North Sea or by onshore fracking.

But it's an important distinction in law that it was voluntary as what is negotiated away can be negotiated back. It's a way of building our legal case, not reducing it.

International law changes over time. In 1707 the rights of conquest would have been regarded as legal. Therefore to argue that we were forced it like arguing that England has a right to us. Whereas if we argue that we went into it voluntarily, that means we have more clout now. Follow?

Is there any doubt that Scotland's waters are her own, or that North Sea oil belongs to Scotland, should we decide to leave the UK?

And isn't it the fact that whatever the legalities of sticking Trident in Scotland, that politically Scots have never accepted the right of the British government to stick it there?

It is a complex matter, and Scheffer and others have argued quite clearly that Scotland is a special case, sui generis. Quebec was ceded by a treaty is was never party to, it was traded, effectively, by a defeated France. Scotland voluntarily entered into a union by an international treaty it itself negotiated in. That wasn't the case with Quebec.

Isn't the basic premise of your response overly emphatic? I'd agree that it is probably dangerous to try and draw direct comparisons between Scotland and other cases, as Scotland is sui generis. However I don't think the article or comments have referred to the fact that one of the aspects of the Canadian Supreme Court's findings in relation to the Clarity Act which tends to undercut Andrew's breezy certainties about secession, particularly in a situation where as the article states the over-arching power cuts it up rough.

The Canadian Supreme Court itself appears to recognise an obligation on BOTH the parties to negotiate in good faith given certain preconditions (some of which are specific to the Quebec/Canada situation). The corollary of this is that in a situation where London were to refuse to recognise a free vote in favour of independence (or by extension where Madrid acted to refuse to recognise a Catalan pro-independence vote) it would be less easy to maintain the cosy certainties of territorial integrity.

In short the presumption that "internal self-determination" is the best that entities like Scotland, Quebec or Catalonia could hope for could be seen to rest on the foundation of an implied acceptance that the UK, Canada and Spain are bound to accept good faith negotiations for secession in the event those entities voted in favour of independence. The absence of good faith on the part of the London, Ottawa or Madrid in the face of a convincing pro-indepencence vote could actually encourage international recognition of a disputed pro-independence vote, or even in extremis unilateral secession.

There isn't a court that sits and decides on who has broken what law or enforces it.

It is simply the consensus of the international community. What is regarded as fair. Whilst Andrew is right that international law doesn't currently recognise the right of secession, this is because it regards it as basically very destabilising of international order unless there are very good reasons, such as escaping from colonial oppression.

Scotland's case is virtually unique in that it can be argued that we remain a nation, which never surrendered certain aspects of its sovereignty, voluntarily joined a union, and that the UK is a union state rather than a unitary state. I.e. Scotland's territorial integrity is her own. Scots law prevails over it, including over her maritime rights. On the other hand some aspects of the UK clearly are unitary, its military-fiscal system for instance. My point being that the matter is not clear cut.

That aside, and returning to my previous point, politics basically trumps law. The UK is a democracy. If the population of Scotland by a sizeable majority wishes home rule or eventually to dissolve the union, it would be highly destabilising to refuse that wish, especially if Scotland showed herself as well capable of democratic self-government. England would look like a pariah, and bit by bit pressure would be applied to get her to see reason. Overall, the interest of the international community is one of stability, and that is what tends to shape and form international law.

Just an afterthught - I wonder about the the rights of nations within nations (however both may be defined), eg many members of the First Nations within Quebec were not convinced of the desirability of Quebec independence.

My impression is this is a hot topic in the US but problems abound - the Lakota claim the Black Hills but as the Crow and other tribes point out, the Laktoa stole the land from them. Whow are the victims?

The relevance to us I suppose are the Northern Isles, where clearly a substantial majority wish to remain British - or at least do not identify with a separate Scotland, and can point to historical and cultural differences with the rest of Scotland while doing so.

The Western Isles were only brought under Scottish domination in the 17th century - Jamie Saxt's sponsorship of the splendidly named Gentleman Adventurers of Fife failed dramatically but eventually Scots Ruled OK over the Hebridean culture. But with limitations, as the referendum showed,

Edwin, people (generally unionists and misguided LibDem MPs) frequently make the evidence free claim that a substantial majority in the Northern Isles wish to remain British; you even say "clearly". Sadly, there is as far as I've been able to find no back up for this at all. In the context of discussions about oil reserves I looked into that in some detail. The only polling evidence I could find was from the Aberdeen Press & Journal a few years ago; this found that >80% of folk in the Northern Isles would vote to stay as part of Scotland in the event of independence. So the scant evidence there is actually suggests the exact opposite of your assertion.

Well Orkney voted No by 67% to 33%, Shetland voted No by 63.7% to 36.3% - a pretty decisive rejection of indy and an affirmation of wishing to remain in the UK.

As I said, this may, however, be an indication that they feel different from the rest of Scotland, rather than a positive identification with Britain, but however you cast the runes it is clear that if a future referendum resulted in a Scotland wide Yes vote - and the Northern Isles voted No - there would be a desperate amount of Falkirk Kelpie size horse trading going on.

As for 'misguided' LibDem MPs, well the people there vote LibDem so Carmichael can surely claim to speak for them - more so than anyone from the SNP. But come to think of it , the Western Isles votes SNP for Holyrood and Westminster but voted No so maybe I'm talking rubbish.

I'm not sure how far you can use GE voting patterns to shed light on attitudes to independence. The vote in September is more germane certainly, but it still doesn't answer the question of whether the islands would have expected or wanted to remain part of the UK if the rest of Scotland voted Yes?

For the record, I have no particular issue with the islands deciding their own future, although as a matter of international law they would only be entitled to a 12 mile territorial waters limit if they elected to remain part of the UK (since they would be termed an exclave in Scotland's EEZ). They would of course retain revenues from acting as oil transit and facilities base, but only full independence for the isles would give them their own EEZ which would have to be re-negotiated with Norway, Denmark (for the Faroes) and Scotland.

Given the Telegraph's latest plan to carve the Borders out of Scotland in the event of independence, perhaps the SNP should be thinking of standing candidates in the NE of England and Cumbria and offering them full self government within an independent Scotland? I have some relatives on Wearside who might be persuaded? ;-)

I have Norwegian ancestry (Dad) and read the Norwegian newspapers from time to time. During the referendum a blog post about the indyref appeared on the NRK website. This was about the Shetland movement, and whether Orkney and Shetland would want to be part of an independent Scotland if we voted Yes. It was written by a British writer but published in Norwegian. The comments section was however Norwegians responding to the blog post.

One of them (who appeared to be quite knowledgable about Norway's connection to the islands) made the point that these island groups had never in fact ever been truly part of Norway. Even when formally part of the Norwegian 'realm'. He said that they were only nominally Norwegian and that the Norwegian crown had struggled to assert its authority there and could only do so by force - a bit like the Western Isles which were ceded to Scotland in 1263 after the Battle of Largs, which was a tax collecting mission undertaken by the Norwegian king. He failed to get the Western Isles to submit to him or pay taxes. He was slightly better received in Orkney and Shetland, but only just. Then in 1376, after the Black Death devasted Norway the country entered into the Kalmar Union with Sweden and Denmark; the three realms were in a political union. Effectively authority (already weak) became weaker still after the Danish royal house became the heir to the Kalmar arrangements.

So that when the islands were ceded by the Danish king to Scotland as part of a dowry arrangement some 80 years later, fiscal links were weak, which is why the Danish king didn't really regard it as much of a giveaway.

Anyway, to cut a long story short, what this Norwegian was saying was that in effect Orkney and Shetland have always been autonomous island groups, and never really belonged to Norway during their 'Norwegian' period. Obviously there were trade and cultural links, but politically the islands could only be subdued by force, and Norwegian kings never really thought the effort of subjugation was worth the meagre returns.

During the time the islands have belonged to Scotland, royal authority was more developed and fuller than in the Middle Ages, which gives Scotland a far greater claim.

My late mother in law was a Shetlander and worked on the Shetland end of the Shetland Bus - certainly she felt a close connection to Norway, though she also felt Scottish and British - nothing wrong with multiple identities.

'a bit like the Western Isles which were ceded to Scotland in 1263 after the Battle of Largs,'

And it took 350 years before the Scots tried to subdue them - the death toll of the Jamie- blessed Fife Adventurer campaign was pretty high and the lowlanders eventually succumbed in their Stornoway stockade, but Scots manipulation of clan rivalry eventually won. Took a while though.

“I think of him more of a long nosed, elegantly coiffed Afghan pawing through his leather bound library whilst disdainfully inhaling a puddle of Armagnac in an immense crystal snifter. If he can also lift his leg over his shoulder and lick his balls...” ~ Conan the Librarian™

“... the erudite and loquacious Peat Worrier who never knowingly avoids a prolix circumlocution.” ~Love and Garbage

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Definition: "to worry peat" v.

"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.